REFUSAL INCURRING OBLIGATORY MILITARY SERVICE (ARTICLE 409 OF THE CRIMINAL CODE OF UKRAINE): DIFFERENT PROBLEMS OF APPLICATION

Abstract

The purpose of the article is to characterize certain problems of application of parts 2 and 3 of Article 409 of the Criminal Code of Ukraine in the case law, for the achievement of which a number of tasks were set. The following main conclusions were made on their implementation. Significant reasons for refusing to perform a legal obligation as a socially dangerous act are the following: refusal is an active behavior of the subject (action) that is conscious and volitional; open. categorical and demonstrative nature of the refusal; one-time refusal A distinction is made between refusing to evade and non-compliance with a legal obligation. In particular, by avoiding the implementation of legal obligations imposed on a person, it seems to be acting implicitly, without expressly declaring unwillingness to do something; evasion as a socially dangerous act can be committed only in the form of inactivity ("pure" or "mixed"), whereas refusal is always an active behavior of the subject; demonstrative nature of the refusal, which is not typical for evasion and non-fulfillment of the legal obligation; evasion from the performance of a legal obligation is always "stretched" in time, while refusal is a one-step action. The refusal to perform military service duties is an independent crime, different from other forms of evasion from the execution of a military duty, the responsibility for which is provided for in Articles 407, 408, paragraph 1 of Article 409 of the Criminal Code of Ukraine. Typical cases of refusal to carry out military service duties in the examined sentences are the following acts of servicemen: self-compilation of a report on refusal to undergo military service and to perform military duties; refusal to accompany the personnel of the military unit to the area of the anti-terrorist operation (operations of the united forces); refusal to carry out military service duties, expressed in the handing over of weapons and ammunition issued for use and changing clothes into civilian form; refusal to perform military duties, in the presence of personnel of the military unit. In the event that a person does not intend to take military service and leaves the military unit for a certain time, its actions require qualification under Articles 407 or 408 of the Criminal Code of Ukraine depending on the purpose pursued by the guilty party. However, if, in this case, the person does not intend to hide, but makes a statement (oral or written) about reluctance to take military service, its actions should be qualified according to parts 2 or 3 of Article 409 of the Criminal Code of Ukraine.